Marie Ponder CLARK
v.
Patricia Proffitt CLARK (Fowler), and Cecil Clark, guardian of Gene Wayne Clark, John Lloyd Clark, Gambell Clark and Gila Clark.
No. 64.
Supreme Court of North Carolina.
April 17, 1978.*139 Long, McClure & Dodd, by Robert B. Long, Jr., Asheville, for plaintiff appellant.
John E. Shackelford, Riddle & Shackelford, Asheville, for defendant appellee.
SHARP, Chief Justice.
We consider first plaintiff's contentions that the trial court erred in finding her in contempt and that the Court of Appeals erred in holding that adjudication unappealable because, punishment having been withheld, she was not a party aggrieved.
With reference to her right to appeal plaintiff argues that the findings she had willfully disobeyed the court's orders providing for the custody of Gambell and Gila, if sustained, convict her of both civil contempt under G.S. 50-13.3 and criminal contempt under G.S. 5-1(4). Citing Willis v. Power Co., 291 N.C. 19, 229 S.E.2d 191 (1977) and Rose's Stores v. Tarrytown Center, 270 N.C. 206, 154 S.E.2d 313 (1967), she asserts that G.S. 5-2 permits her to appeal the adjudication of contempt even though the court has imposed no punishment. Pointing to the provision of the judgment that plaintiff "is in contempt of this Court and ... the Court does hereby withhold punishment for said contempt, but makes said Findings as a part of the record herein," plaintiff maintains that by "withholding" punishment for her adjudged contempt the court did not thereby waive, relinquish, or abandon the right to impose punishment at a later date. On the contrary, she insists, merely "to withhold" punishment without further limitation is to retain the right to impose it in the future, and under these circumstances the order holding her in contempt "affected a substantial right" and is therefore appealable. G.S. 1-271; G.S. 1-277.
The cited cases sustain plaintiff's contentions, and we hold that she was entitled to appeal the order adjudging her in contempt. Thus, the next question is whether the record supports the trial court's findings.
In contempt proceedings the judge's findings of fact are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment. Rose's Stores v. Tarrytown Center, supra; Cotton Mill Co. v. Textile Workers Union, 234 N.C. 545, 67 S.E.2d 755 (1951); 3 Strong's North Carolina Index 3rd, Contempt of Court § 8 (1976). We hold that both direct and circumstantial evidence supports Judge Lacey's findings and affirm his adjudication that plaintiff is in contempt of court.
With reference to the court's finding that on 29 November 1975 plaintiff willfully refused to deliver Gila and Gambell to the Madison County Sheriff's Department so that defendant could pick them up in accordance with the court's order dated 24 November 1975, plaintiff contends that "there is no evidence she was aware of the existence or terms of the order." This contention will not withstand a scrutiny of the record, which contains evidence tending to show:
(1) At the conclusion of the hearing on 20 November 1975 Judge Lacey announced the terms of its judgment in open court. The judgment was signed on November 24th. It was filed on November 26th and copies mailed to the attorneys for the parties. Defendant had her copy on November 29th.
(2) Plaintiff was in court on 20 November 1975 when Judge Lacey announced his ruling that thereafter Gambell and Gila would visit defendant the fourth weekend of each month, except that during the current month of November the visitation would be on the fifth weekend, just nine days away. The variation for November was made after Gene or one of the other children had called Mrs. Clark's attention to the fact that they had previously made plans for the fourth weekend.
(3) The children's testamentary guardian, their Uncle Cecil Clark, had also been at the November 1975 hearing and testified *140 that he was familiar with the court's order. On cross-examination he recalled that at the end of the hearing Judge Lacey had announced that defendant was to have the children on the fifth weekend in November.
(4) Sheriff Ponder testified, without objection, that on the fifth weekend in November when defendant came to his jail for the children he called his sister, Mrs. Clark, and "she said she had not seen the order; it had never been presented to her."
(5) Gene Clark, then 15 years old, when asked on cross-examination if he could "give any reason why the two girls did not go to the jail on the fifth weekend in November like the judge had said in court?" replied, "... it seems like I recall something about we had not gotten a copy of the order saying that they were supposed to go on the fifth weekend."
From the evidence adduced the conclusion is inescapable that on 29 November 1975 Mrs. Clark, the children, and their testamentary guardian all had knowledge of the substance and meaning of the order which Judge Lacey enunciated on November 20th, signed on November 24th, and filed on November 26th, and that Mrs. Clark, using as an excuse the fact that she did not have a copy of the order in hand, willfully failed and refused to deliver the children as required by the order. Neither receipt of a copy of the order nor knowledge of its exact words were conditions precedent to her obligation to comply with it. See Cotton Mills v. Local 584, 251 N.C. 240, 247, 111 S.E.2d 471, 475 (1959); 3 Strong's North Carolina Index 3rd, Contempt of Court § 3.1 (1977).
The court's finding that "[p]laintiff has advised Gambell and Gila Clark that they did not have to visit with the defendant or the Grandmother [Mrs. Proffitt] unless they wanted to, in violation of the Order of November 24, 1975, and other Orders of this Court" is likewise supported by competent record evidence. Gene testified that on at least one occasion plaintiff told Gambell she would not make her visit Mrs. Proffitt if the child didn't want to do it. He added, "We weren't going to force none of the kids into doing something against their will that we saw no cause to." Gila, then "nine or ten," testified that once or twice Mrs. Clark had told her that she would not have to make the visits against her will. When asked if plaintiff had ever told her she did not have to visit her mother if she didn't want to, and whether plaintiff had told John, Gila, and Gene not to go to Weaverville, Gambell, then eleven years old, replied that she could not remember. Further, Mrs. Proffitt testified that sometime early in 1976, in a telephone conversation, Mrs. Clark told her that she did not mind the children visiting with her and Mr. Proffitt, "but that they were not to go to Weaverville."
Plaintiff's assignment of error challenging the sufficiency of the evidence to support the trial court's finding that she had willfully violated the order of 24 November 1975 is overruled.
The record in this case tells a sad story. In August 1967 defendant left her husband and four children, then aged respectively eight, five, three, and two years, and for five years thereafter had no contact with them. During this time plaintiff assumed the role of mother; she gave them tender, loving care and a comfortable, secure home. The children lived happily with plaintiff and their father until his death in April 1972, and since then have lived with plaintiff. Understandably, they return plaintiff's affection and give her the love children customarily give their mother. Under these circumstances it is not surprising that plaintiff has been unwilling to share the children with their mother and has resented, and attempted to thwart, defendant's efforts to reestablish a mother's relationship with the children, as well as the court's efforts to assist defendant in doing so.
The two judges before whom this controversy has come have at all times recognized the bond of affection between plaintiff and the children and that plaintiff has earned the right to their primary custody. With judgmatical objectivity, however, the judges have weighed a consideration which plaintiff obviously has not permitted herself *141 to contemplate: Her life expectancy is less than defendant's, and it is not in the children's interest that the court ignore the possibility of plaintiff's disablement or death prior to the majority of one or more of them. The testimony of her physician that she is overweight and now suffering from diabetes, high blood pressure, coronary artery insufficiency and anginal attacks corroborates that possibility and supports its probability.
From the beginning of this litigation the judges have recognized that while it was best for the children to remain in the custody of their grandmother, it was also in their interest "to have frequent visits, contacts and associations with their natural mother," and since her marriage, with her husband. After the entry of the order of 11 August 1972, defendant, albeit a resident of Alabama for over two years, and despite great expense, journeyed to Madison County every month she was allowed to visit her children, telephoned them frequently, and "generally did all she reasonably could to demonstrate her love for the children and to win their love and affection." The children responded, and warm and affectionate relations developed between them and their mother and stepfather.
However, the factual findings contained in the judgments indicate that plaintiff's hostility and antagonism toward defendant increased as defendant's personal situation and status improved, and the court increased her visitation privileges. Inevitably plaintiff's attitude and conduct were reflected in the attitude and conduct of the children toward defendant. In consequence, on 13 August 1975, Judge Lacey directed that until the further orders of the court the children should be allowed to visit defendant at any time they desired but not be compelled to visit her. Three and one-half months later, upon a finding that the children had not visited defendant since the entry of the August order, on 24 November 1975 Judge Lacey ordered once-a-month compulsory visitations with defendant and with Mrs. Proffitt. Inter alia, in consequence of plaintiff's willful violations of the November order, her deteriorating physical condition, and the children's improved relations with their mother, on 4 June 1976 Judge Lacey entered the order under review.
With reference to this order plaintiff contends (1) that the visiting privileges awarded defendant in the judgment of 4 June 1976 cannot be sustained because they are unsupported by either a finding that changed conditions justified the visitations specified or that these visitations are in the best interest of the children; and (2) that the Court of Appeals erred in holding that under its decision in Clark v. Clark, 23 N.C.App. 589, 209 S.E.2d 545 (1974), which "stands as the law of [this] case," defendant is not required to show changed conditions in order to secure a modification of her visitation privileges. See 3 Lee, North Carolina Family Law § 226 (Cum.Supp.1976). We consider first contention (2). See Spartan Leasing, Inc. v. Brown, 285 N.C. 689, 208 S.E.2d 649 (1974); Peaseley v. Virginia Iron, Coal & Coke Co., 282 N.C. 585, 194 S.E.2d 133 (1973).
In the consent judgment of 11 August 1972, the first order entered in this cause, the court retained the proceeding "for further orders and particularly for entry of special order further specifying the visiting privileges of the defendant ..., which said special order only may be entered without showing of change of condition but... only after appropriate notice." In both Clark v. Clark, supra, and its unpublished decision from which plaintiff now appeals, the Court of Appeals held that the above-quoted provision estops plaintiff from raising the issue of changed conditions. We agree with plaintiff that the Court of Appeals erred in making this ruling.
An agreement by the parties that the court may change visitation privileges in a custody order without any showing of changed conditions does not relieve the court of its duty to determine whether changed circumstances affecting the welfare of the child justify a modification. It is clear that "the modification of a custody *142 decree must be supported by findings of fact based on competent evidence that there has been a substantial change of circumstances affecting the welfare of the child, and the party moving for such modification assumes the burden of showing such change of circumstances." Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974). G.S. 50-13.7(a) (Replacement 1976) provides that "[a]n order of a court of this State for custody . . . of a minor child may be modified at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested." Visitation privileges are but a lesser degree of custody. Thus, we hold that the word "custody" as used in G.S. 50-13.7 was intended to encompass visitation rights as well as general custody. As Justice Branch said in Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968) with reference to the rule that a change in custody requires a finding of changed circumstances, "to hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved."
Notwithstanding, the error in Clark v. Clark, supra, has no significance on this appeal because the order of 6 June 1976 contains findings of changed circumstances affecting the welfare of the children which, were the issue of changed conditions decisive on this appeal, would suffice to sustain the visitation award. Indeed, the order in Clark v. Clark, and in each order entered after the August 1972 judgment, the court made findings demonstrating one or more significant changes in circumstances affecting the welfare of the children and justifying the changes made.
Plaintiff's contention (based on her assignment of error No. 19) that the visitations ordered in the judgment of 4 June 1976 are not supported by a finding that required visits are in the children's best interest must be sustained. The Court of Appeals correctly held that the case must be remanded for proper findings and conclusions on this issue.
In view of the time which will have elapsed since the order of 4 June 1976 the trial judge will, without undue delay, conduct a plenary hearing. Thereafter he will make such order with reference to the custody of the infant children, and visitation rights incident to the award of their custody, as he shall determine to be in their best interest under the conditions then prevailing. The ages of these children render it appropriate and desirable for the judge to ascertain and consider their wishes in respect to their custody. As stated in 3 Lee, North Carolina Family Law, § 224:
"When the child has reached the age of discretion, the court may consider the preference or wishes of the child to live with a particular person. A child has attained an age of discretion when it is of an age and capacity to form an intelligent or rational view on the matter. The expressed wish of a child of discretion is, however, never controlling upon the court, since the court must yield in all cases to what it considers to be for the child's best interests, regardless of the child's personal preference. . . . The preference of the child should be based upon a considered and rational judgment, and not made because of some temporary dissatisfaction or passing whim or some present lure."
Reversed in part; affirmed in part; and remanded.